Kingsbeer v Okey - [2018] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2013-454-458

[2018] NZHC 3309

BETWEEN
PAULINE ANNE KINGSBEER AND

BERNADETTE PLAW AS TRUSTEES OF THE PAK TRUST

Applicants

AND

RONALD GORDON OKEY

First Respondent

AND

MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED

Second Respondent

Hearing: 10 December 2018

Counsel:

R J B Fowler QC for the Applicants

J K Mahuta-Coyle for the Respondents

Judgment:

14 December 2018

JUDGMENT OF COOKE J

[1] The present matters before the Court involve a continuation of disputes between the applicants and the respondents that have already proceeded before this Court and the Court of Appeal. The proceedings concern a private road over the applicants’ property in Palmerston North that is used by both the applicants and the respondents. The respondents use the road under an easement. The applicants now apply for two formal orders that are consequential upon the decision of the Court of Appeal:

(a)directing the respondents to pay a particular sum for the upgrade of the road, with an associated “unless” order that the respondents’ equitable easement will lapse if the sum is not paid; and

KINGSBEER v OKEY [2018] NZHC 3309 [14 December 2018]

(b)settling costs in relation for the initial High Court proceedings, in circumstances where the orders made by the Court were overturned on appeal by the Court of Appeal.

Background

[2] For a number of years the respondents have benefitted from a roading easement over the applicants’ land. In December 2013, the applicants bought proceedings by way of statement of claim seeking orders that the easement be extinguished as a consequence of the respondents’ more extensive use of the road by heavier vehicles, or alternatively that the respondents pay the cost of upgrading the road to meet the standards required for private roading with that kind of vehicular use. The respondents opposed both orders, although prior to the trial they made an offer to pay 50 per cent of the costs of upgrading the road.

[3] By judgment dated 1 February 2017 this Court held that the easement was invalid as a consequence of s 348(1) of the Local Government Act 1974.1 This provision requires local authorities to give permission before private roads are created, or rights of way granted, within their territories. The respondents appealed to the Court of Appeal, and by judgment dated 21 December 2017 the Court allowed the appeal.2 It held that the respondents had an equitable easement which was not overridden by s 348, and the easement was sufficiently broad in nature to allow an increase in the traffic by heavier vehicles without resulting in a change in circumstances sufficient for the Court to intervene under s 317 of the Property Law Act 2007. The Court nevertheless recognised that an upgrade was required, and exercised the jurisdiction under s 313 of the Property Law Act to hold that the respondents meet 75 per cent of the costs of upgrade, and the applicants 25 per cent.

[4]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kingsbeer v Okey

Details

AGLC: Kingsbeer v Okey [2018] NZHC 3309
Case: [2018] NZHC 3309
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Kingsbeer v Okey concerns a dispute between Pauline Anne Kingsbeer and Bernadette Plaw, as trustees of the Pak Trust, and Ronald Gordon Okey, along with McKenzie McPhail Corporate Trustees Limited, regarding a private road easement over the applicants' property in Palmerston North. The applicants seek orders to upgrade the road, which the respondents use under an easement, and to settle costs related to the initial High Court proceedings, which were overturned on appeal. The Court of Appeal had previously ruled in favour of the respondents, finding that they had an equitable easement that allowed for an increase in traffic by heavier vehicles without requiring intervention by the Court. However, the Court of Appeal also recognised that an upgrade was necessary and held that the respondents should bear 75 per cent of the upgrade costs, and the applicants 25 per cent.

The applicants now seek orders directing the respondents to pay a specific sum for the upgrade, with an "unless" order that the respondents' equitable easement will lapse if the sum is not paid. The applicants also seek to settle the costs of the initial High Court proceedings, as the Court of Appeal had overlooked dealing with the costs in the High Court. The respondents argue that the Court has no jurisdiction to deal with the interlocutory application, as the Court is functus officio and the proceedings have been finally determined. The applicants counter that the orders they seek would not alter or add to the judgment of the Court of Appeal, and are appropriately advanced as further orders to give effect to the Court of Appeal decision.

The Court dismisses the interlocutory application for want of jurisdiction, but provides guidance to the parties on the appropriate jurisdictional path for the kind of orders the applicants seek. The Court suggests a process for upgrading the road, which involves the parties jointly instructing a project manager to determine the remaining issues concerning the upgrading, including the process for appointing contractors, the timeframe for completion of the works, and the process for making payments. The Court also addresses issues related to a drain associated with the existing road, and clarifies that the upgrade of the road is a requirement for both parties to properly exercise their legal rights. In terms of costs, the Court awards the applicants 50 per cent of the costs of the initial proceedings, and the respondents are awarded costs for the interlocutory application.

In conclusion, the Court dismisses the interlocutory application but provides guidance to the parties on how to proceed with the upgrading of the road and the resolution of their disputes. The Court also provides direction on the appropriate jurisdictional path for the parties to follow in the event of non-cooperation or failure to act in accordance with the Court of Appeal judgment. The Court's decision ensures that the parties have a clear pathway forward for resolving their disputes, while also recognising the importance of upholding the Court of Appeal judgment.

Orders